If you came here from elsewhere and want to play Is It Fair Use?, stop reading and click here.
After all that build up, I’m sure you weren’t surprised. Read the whole opinion here. The Second Circuit made three salient legal points:
  1. To be transformative, the new work need not comment on the work from which it borrows.
  2. The author’s intent is isn’t terribly important. To tell if a work if transformative (whatever that means), you must look at it from the point of view of a reasonable viewer.
  3. A market is only usurped if the target audience and “nature of the infringing content” is the same as the original.
But the reversal must be tempered, because it applied only to those 25 works that weren’t like Graduation. The other five works were remanded for more fact-finding on the issue of fair use. The Second Circuit thought Prince transformed those five photographs, but it wasn’t sure if he transformed them enough. So perhaps we haven’t heard the last of this case. If it goes back up on appeal, perhaps then, with these apparently close cases, the Second Circuit can shed some light on how much transformation is enough to render a work “transformative.”

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.